Citation Nr: 0032647
Decision Date: 12/14/00 Archive Date: 12/20/00
DOCKET NO. 99-15 781 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to an increased evaluation for a lumbosacral
strain, currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. J. Wells-Green, Counsel
INTRODUCTION
The veteran served on active duty from August 1966 to August
1970. This matter comes to the Board of Veterans' Appeals
(Board) on appeal from a February 1999 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Chicago, Illinois.
During his June 2000 video conference hearing, the veteran
indicated that he had raised the issue of entitlement to a
total rating based on individual unemployability due to
service-connected disabilities. This issue is referred to
the RO for appropriate initial action.
REMAND
During the pendency of the appellant's appeal, the Veterans
Claims Assistance of Act of 2000 became law. This
liberalizing legislation is applicable to the appellant's
claim. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13
(1991). It provides that VA will assist a claimant in
obtaining evidence necessary to substantiate a claim but is
not required to provide assistance to a claimant if there is
no reasonable possibility that such assistance would aid in
substantiating the claim. It also includes new notification
provisions. Specifically, it requires VA to notify the
claimant and the claimant's representative, if any, of any
information, and any medical or lay evidence, not previously
provided to the Secretary that is necessary to substantiate
the claim. As part of the notice, VA is to specifically
inform the claimant of which portion, if any, of the evidence
is to be provided by the claimant and which part, if any, VA
will attempt to obtain on behalf of the claimant.
At the time of his June 2000 video conference hearing before
the undersigned, the veteran testified that he last saw his
physician, Dr. Farby, for his low back disability earlier
that month. Further, he stated that he had received
permanent disability retirement from the U.S. Postal Service,
effective in January 2000, as a result of his low back
disability Copies of these relevant treatment and disability
retirement records have not been secured.
Although the veteran underwent a VA orthopedic examination in
March 2000, it is unclear whether the examiner evaluated more
than the veteran's cervical spine. Moreover, while the
December 1998 VA examiner found that the veteran had no
painful limitation of motion, the veteran has since testified
in both his September 1999 personal hearing and his June 2000
video conference hearing, that he has pain with all low back
range of motion and symptoms suggestive of radiculopathy.
The Board is of the opinion that the veteran should be
provided another orthopedic examination with adequate
assessment of functional limitation as a result of pain or
painful motion, to include functional loss during flare-ups.
See DeLuca v. Brown, 8 Vet. App. 202 (1995). The U.S. Court
of Appeals for Veterans Claims has held that, under 38
U.S.C.A. § 5107(a) (West 1991), VA's duty to assist a veteran
in obtaining and developing available facts and evidence to
support a claim includes obtaining an adequate and
contemporaneous VA examination which takes into account the
records of prior medical treatment. Littke v. Derwinski, 1
Vet. App. 90 (1990). Finally, the Board notes that the
evidence of record indicates neurological impairment as a
result of the veteran's low back disability. He should also
be provided a neurological examination.
Accordingly, the case is REMANDED to the RO for the following
action:
1. The RO should contact the veteran and
request that he identify specific names,
addresses and approximate dates of
treatment for all health care providers,
VA and private, who may possess
additional records pertinent to his
claim. Then with any necessary
authorization from the veteran, the RO
should attempt to obtain copies of all
treatment records identified by the
veteran which have not been previously
secured. Any records received should be
associated with the claims folder.
2. If the RO is unsuccessful in
obtaining any medical records identified
by the veteran, it should inform the
veteran of this and request him to
provide a copy of the outstanding medical
records.
3. After the above development has been
completed, but in any event, the RO
should schedule the veteran for VA
examinations by an orthopedist and
neurologist in order to determine the
nature and extent of the service-
connected lumbosacral disability. All
indicated tests and studies are to be
performed. The claims folder is to be
made available to the examiners prior to
examination for use in the study of the
case. The examiners should set forth all
objective findings regarding the
lumbosacral spine disability, including
complete range of motion measurements.
The orthopedist should be requested to
identify any objective evidence of pain,
painful motion, or functional loss due to
pain as a result of the veteran's
lumbosacral spine disability. The extent
of any weakened movement, excess
fatigability or incoordination associated
with the lumbosacral spine disability
should be specifically assessed. The
orthopedist should also express an
opinion as to whether there would be
additional limits on functional ability
during flare-ups (if the veteran
describes flare-ups), and if feasible,
express this in terms of additional
limitation of motion during flare-ups.
If not feasible, the examiner should so
state. The neurologist should discuss
any neurologically based disability, to
include distorted sensation in the lower
extremities, muscle spasms, atrophy,
pain, decreased reflexes or foot drop.
The veteran is hereby advised that
failure to report for a scheduled VA
examination without good cause shown may
have adverse effects on his claim.
4. The RO must review the claims file and
ensure that all notification and
development action required by the
Veterans Claims Assistance Act of 2000,
Pub. L. No. 106-475 is completed. In
particular, the RO should ensure that the
new notification requirements and
development procedures contained in
sections 3 and 4 of the Act (to be
codified as amended at 38 U.S.C. §§ 5102,
5103, 5103A, and 5107) are fully complied
with and satisfied. For further guidance
on the processing of this case in light
of the changes in the law, the RO should
refer to VBA Fast Letter 00-87
(November 17, 2000), as well as any
pertinent formal or informal guidance
that is subsequently provided by the
Department, including, among others
things, final regulations and General
Counsel precedent opinions. Any binding
and pertinent court decisions that are
subsequently issued also should be
considered. Thereafter, the RO should
readjudicate the claim.
If the benefit sought on appeal remains denied, the appellant
and the appellant's representative, if any, should be
provided with a supplemental statement of the case (SSOC).
The SSOC must contain notice of all relevant actions taken on
the claim for benefits, to include a summary of the evidence
and applicable law and regulations considered pertinent to
the issue currently on appeal. An appropriate period of time
should be allowed for response.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
RENÉE M. PELLETIER
Veterans Law Judge
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).